Suffolk Superior Court, Boston, September 1770

SC. Augt. [Term] 1770

Rex v. Richardson

Motion for new Trial.

Deming. Foreman.2 Mr. Lothrop was satisfied as to Fact, but not Law. Mr. Clap not so fully satisfied
as to Law. I told him the Court knew the Law. We all agreed about 1/2 an hour before
we came in on Rich[ardson].

Lothrop. I did not fall in so soon as some, for I thought the time might be as well spent
in Argument. Jury in Gen[eral] thought if the verdict was not agreeable to Law the Court would not receive it. It
was a motive with me.3

I heard some Body say as we passed up stairs Damn him don't bring it in Manslaughter.

Clap. At first going out I was not so clear as afterwards, for the { 427 } Reason offered, such as its being in the Day.4 Something was said that the Court would not receive it if not right, but it did not
weigh with me.

Withington. The Rabble as we were going out said hang the Dog hang him.5

Stoddard. I heard no such thing.

Leveret. A great hiddalo. But I heard northing.

John Smith. As I passed and [turn'd?] the Stairs down the Stairs some said hang him no Manslaughter, but no Body minded it.

Elisha Gardner. I heard a tumultuous noise, no Manslaughter but Murder, it appeared with no Connections to the Jury.

Jona. Ellis. I heard some Body cry out damn him hang him Murder no Manslaughter. It seemed down stairs. Not mentioned in the Jury Room.

Jos. Hawes. As the Jury were going out I heard some Body say hang him a dog, but from whom I dont know. There was some such talk that if the Court did not like
the Verdict they would not receive it.

Ephm. Pratt. There was a noise but I heard no Words.

Ebe. Adams. I heard a Noise below but heard no Body speak so as to be understood. Something like
hang him. I did not take it to [be] directed to the Jury.

Mr. Usher. Keeper of the Jury. Many People below till 12 or 1 oClock. I heard no Cry of hang
'em &c.

3. “One of the Jurors declared, that he thought him innocent, and had persisted all Night
in that Opinion, against the united Sentiment of the other eleven; but in the Morning,
after a tedious whole Nights Fatigue, his Bretheren overperswaded him to unite with
them, by urging this Argument upon him, vizt. 'that the Court had delivered their
Opinion, in Law, that the Prisoner was innocent, and that his Life would be saved;
therefore, that it was not worth while to stand out any longer.' These Arguments alone,
he said, prevailed with him to join with the others in their Verdict.”Oliver, Origin and Progress 87.

4. “One of them said, 'that he should have acquitted the Prisoner, had the killing happened
in the Night instead of the Day.'” Oliver Origin and Progress 87.

5. “Some of them acknowledged, that, as they past thro' the Mob, from the Court to their
Apartment, they were called upon to bring the Prisoner in guilty.” Oliver, Origin and Progress 87.

6. Wats v. Brains, Cro. Eliz. 778–779, 78 Eng. Rep. 1009 (Q.B. 1601): On an appeal of murder, “notwithstanding the Evidence was pregnant against
the defendant,” eight, and then ten of the jurors voted “not guilty.” The two others
proposed that the jury bring in a “not guilty” verdict on condition that if the court
“disliked thereof,” the verdict would be changed to “guilty.” When, however, the foreman
pronounced “not guilty” the court, “much misliking thereof, being contrary to their
direction,” polled the jury, discovered the scheme, sent the jury out again, received
a verdict of guilty, and fined or reprimanded all the jurors.

“The Defendant was indicted for having put some Ducats into the Pocket of the Prosecutor
with an Intent to charge him with Felony. The Jury found the Defendant guilty generally:
But upon a Motion for a new Trial Affidavits of all the Jurors were produced, in which
they swore that they only intended to find him guilty of the Fact of having put the
Ducats into the Prosecutor's Pocket but not of the Intent; and Foster, J. before whom the Indictment was tried reported that his Direction to the Jury was,
that in Case they did not think the Defendant guilty of the Intent as well as of the
Fact of having put the Ducats into the Prosecutor's Pocket they ought to acquit him.
A new Trial was granted; and by Lee Ch. J. we do not grant a new Trial in this Case on the Account of any after Thought
of the Jurors, for the doing of this might be a very bad Precedent; but because the
Verdict was contrary to the Direction of the Judge in a Matter of Law. By Denison J. if the Verdict had been as the Jury intended it, that the Defendant was guilty
of the Fact but not of the Intent there must have been a Venire facias de Novo for it would have been an incompleat Verdict.”

The case was also reported in 10 State Trials 411, sub nom. Ashley v. Simons the Jew. (Ashley was the prosecutor.) The report sets out interesting
background information, the indictment, the affidavits of the individual jurors, the
judge's additional charge, and the outcome of the second trial (12 July 1752—acquitted).

9. Duncombe, Trials per Pais 224, reports Taylor v. Webb [Style 383, 82 Eng. Rep. 797 (K.B. 1653)]: verdict set aside because jury received writings “after Evidence,” notwithstanding
affidavit by foreman that the jury made no use of the writings in reaching the verdict.

10. Duncombe, Trials per Pais 225, refers to YB 11 Hen. 4, 18: delivery of brief of evidence to jury, even though
it contained no more than was proved in court, avoids the verdict.

11. Duncombe, Trials per Pais 222: “If one of the Parties say to the Jury after they are gone from the Bar, You
are weak Men, it is as clear of my Side as the Nose in a Man's Face; this is new Evidence, for his Affirmation may very much perswade the Jury and therefore
shall quash the Verdict.” This can refer only to the litigant's forensic skill, and
not to the introduction of new evidence, for a party was incompetent to testify.

“[I]f any of the Parties, their Attorneys or Sollicitors speak any thing to the Jury, before they are agreed relating to the Cause, (viz.) That it is a clear Cause, or I hope You will find for such an one, or the like, and they find accordingly, it shall avoid the Verdict; but if words of Salutation, or the like pass between them, (as was endeavoured to
be proved in this Case) they shall not.”

14. 21 Viner, Abridgment 452–453, tit. Trial, §25: Court being held out of doors in a trial between the Bishop
of L. and the Earl of Kent, a “Tempest of Thunder and Lightning” drove one of the jurors into a house, “where diverse said to him that he take Care what he did, for the Matter was better
for the Earl of Kent than for the Bishop; and pray'd him to drink with them, and so
he did.” After verdict for the Bishop the case was argued in the Exchequer Chamber, where
“the best Opinion was that Fine [of the Juror, for drinking]shall be made, and the Verdict good, and not void.”

15. Lady Herbert v. Shaw, 11 Mod. 118, 88 Eng. Rep. 937 (Q.B. 1707): Plaintiff's father, the Duke of Leeds, wrote to each juror requesting his
appearance at the trial, saying: “Which I shall take as a great Obligation, particularly
from your self, and shall be glad of an Occasion to shew how much I am, Sir, your
Humble Servant.” On defendant's motion for new trial, held, motion denied: defendant had notice of the letter long before trial and should have
raised the issue sooner. Powell, J. referred to an unidentified case in the Common
Pleas “where a Stranger writ to a Juryman to consider that the Plaintiff was a poor
Man; for which a new Trial was granted.”

17. Foster, Crown Cases 266, reports a case in which a coroner's jury found that a man run over by a wagon
had been killed by the wheel only, and not the horses and cart too. Held: neither the higher court nor the coroner “can oblige the Jury to conclude otherwise
than They have done.” The page contains no mention of the breviate; see, however,
text at notes 9, 10, 12182, 183, 185, above; Paine, therefore, may possibly be recording two separate references.

18. Rex v. Smith, T. Jones 163, 84 Eng. Rep. 1197 (K.B. 1682): new trial awarded where, on information for perjury, “an obstinate Jury against
the Direction of the Judge, found the Defendant guilty.” Dolbin, J., cited precedents
where verdicts against the evidence were set aside.

19. Rex v. Cornelius, 3 Keble 525, 84 Eng. Rep. 858 (K.B. 1676): conviction of perjury for swearing that S. “was at a conventicle, who was
not; but it appearing the defendant never made any such oath, and that the foreman
was owner of the barn [where the conventicle was held], and challenged, and yet sworn
on the jury; which per Curiam is a great challenge to the favor; and a new trial was
awarded.”

23. Smith v. Frampton, 1 Ld. Raym. 62, 63, 91 Eng. Rep. 938 (K.B. 1695): Action for negligent keeping of fire resulting in plaintiff's house being
burnt; verdict for defendant; motion for new trial for verdict's being against evidence.
Held: “This being a case of hardship, and the jurors being judges of the fact, no new trial
should be granted, although Holt chief justice, before whom it was tried, was dissatisfied with the verdict.”

“However it is settled, That the Court cannot set aside a Verdict which acquits a
Defendant of a Prosecution properly criminal, as it seems that they may a Verdict
that convicts him for having been given contrary to Evidence, and the Directions of
the Judge, or any Verdict whatever for a Mistrial.”

“It is indeed said in one Book [citing Bushel's Case, Vaughan 135, 147, 124 Eng. Rep. 1006, 1012 (C.P. 1670)], that the Jurors are not obliged to ground their Verdict upon the Evidence
given in Court; for that this may be grounded upon their own personal Knowledge. But
no Authority is cited in Support of this Doctrine, and the contrary Opinion to be
the better one. . . . It may moreover be very fairly inferred, from the constant Practice
of granting a new Trial because a Verdict is contrary to Evidence, that the Jury ought
to ground their Verdict intirely upon the Evidence given in Court; for if they have
a Power to ground it upon any other Evidence, how unreasonable would it be for the
Judge before whom the Cause was tried, who must always be a Stranger to what did not
appear in Court, to report that the Verdict is contrary to Evidence, or for the Court
to set it aside as being so.”

26. Rex v. Oneby, 2 Ld. Raym. 1485, 1494, 92 Eng. Rep. 465, 471 (K.B. 1727): “And the jury may, if they think proper, give a general verdict, either that
the prisoner is guilty of murder or of manslaughter.”

27. Anon., 12 Mod. 336, 88 Eng. Rep. 1362 (K.B. 1699), per Holt, C.J.: “In granting a new Trial we ought not altogether to rely on the Certificate of the
Judge who tried the Cause, but upon the Reason of the Thing; and sometimes I would
grant a new Trial against the Certificate of a Judge, if in my Judgment and Conscience
the Matter deserves a Re-examination.”

28. 1 Coke, Institutes *228b: “Although the Jurie, if they will take upon them (as Littleton here saith)
the knowledge of the Law, may give a general verdict, yet it is dangerous for them
so to do.”

“In every Case where the Point turneth upon the Question, Whether the Homicide was
committed Wilfully and Malitiously, or under Circumstances Justifying, Excusing, or
Alleviating; the Matter of Fact, viz. whether the Facts alledged by Way of Justification, Excuse, or Alleviation are True, is the proper and only Province of the Jury. But whether upon a Supposition of the
Truth of Facts such Homicide be Justified, Excused, or Alleviated, must be submitted
to the Judgment of the Court.”